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Bava Kama, 88

1) TESTIMONY AGAINST AN "EVED"

QUESTION: The Gemara explains that according to Rebbi Yehudah, an Eved [Kena'ani] does not receive payment of Boshes, because the verse tells us that Boshes is only paid when one injures one's "brother" (Devarim 25:11). An Eved is not considered one's brother (because he cannot marry into Klal Yisrael; see RASHI). The Gemara asks that if an Eved is not considered one's brother, then Edim Zomemim who testified that an Eved is Chayav Misah and were then proven to be Zomemim -- should themselves not be Chayav Misah. Why, then, are they killed?

The Gemara answers that the verse discussing the punishment of Edim Zomemim concludes, "u'Vi'arta ha'Ra mi'Kirbecha" (Devarim 19:19), and therefore if we know that the Edim tried to have the Eved killed, we must kill them even though the Eved is not considered our "brother."

Why does the Gemara take it for granted that Edim Zomemim of an Eved are indeed killed? Perhaps they are *not* killed!

RASHI writes that we find in the Beraisa in Makos (8b) that a Jew can be sent to Galus for inadvertently killing an Eved, and he can receive Malkus for hitting him and causing an injury that is worth less than a Shaveh Perutah. How does this prove that Edim Zomemim who tried to cause damage to an Eved are punished? Rashi might mean to say that since a Jew is punished for killing an Eved with the same punishment that he receives for killing a normal Jew, it is logical that the Torah would ascribe the same punishment to witnesses who say false testimony about an Eved as it ascribes to witnesses who say false testimony about a normal Jew. It is not logical that the Torah would exempt from punishment Edim Zomemim who testify falsely against an Eved.

TOSFOS (DH Zomemei) takes this further. He says that if Edim Zomemim who falsely testified against an Eved are not killed, then it would be impossible for a Jew to testify that an Eved is Chayav Misah, since it would be "Edus she'Iy Atah Yachol l'Hazimah." As the NODA B'YEHUDAH (Mahadura Kama, EH #74, DH u'Mah she'Hevi Ra'ayah) explains, Tosfos seems to be addressing how the Gemara knows that Edim Zomemim of an Eved are killed. Tosfos answers that they must be killed, since it is obvious (because of everyday occurrences) that testimony can be brought against an Eved to prove that he is Chayav Misah, just as it can be brought against a normal Jew. Hence, the witness who brings such testimony must be able to become an Ed Zomem, and be able to be punished with Misah if he is found to be an Ed Zomem.

According to both of these explanations, the Gemara's question should be not only how Edim Zomemim of an Eved are *killed*, but also how Edim Zomemim of an Eved can be punished with Malkus when they testified that the Eved is Chayav Malkus. Since the Beraisa teaches that a normal Jew receives Malkus for trying to give an Eved Malkus, according to Rashi it should be logical that Edim Zomemim of an Eved should also receive Malkus. Similarly, the logic of Tosfos will prove that those who testify about an Eved are punished with "Ka'asher Zamam" (the punishment that they tried to inflict, which, in this case, is Malkus) because, otherwise, their testimony about the Eved would not be accepted.

How will the Gemara answer why Edim Zomemim of an Eved are punished with Malkus in a case where they testify that the Eved is Chayav Malkus? The verse of "u'Vi'arta ha'Ra mi'Kirbecha" teaches only that we must *kill* witnesses who intend to kill someone by testifying against him, but it does not refer to other punishments (as the verse concludes, "and those who remain alive will hear and fear")! (See CHIDUSHEI REBBI AKIVA EIGER.)

In addition, the Gemara should be asking how a person can testify that an Eved is Chayav to pay money, as our Mishnah says: if an Eved damages someone, then witnesses can testify about him in court and obligate him to pay! Why should the testimony of witnesses about damage caused by an Eved be accepted, if we cannot punish the witnesses by making them pay if they become Edim Zomemim? Their testimony will be "Edus she'Iy Atah Yachol l'Hazimah!" (See NODA B'YEHUDAH, loc. cit.)

ANSWERS:

(a) Perhaps the Gemara's answer is not based on the literal meaning of the words, "u'Vi'arta ha'Ra mi'Kirbecha," which refer to killing a person (see Sanhedrin 78a, regarding a Tereifah who kills another person in front of Beis Din), but rather it is based on a derivation from the fact that the Torah adds extra words. The Torah did not have to say "u'Vi'arta ha'Ra mi'Kirbecha" altogether (since there is another verse (Devarim 17:7), discussing a person who is Chayav Misah, that says "u'Vi'arta ha'Ra mi'Kirbecha"). The Gemara therefore derives from this verse that the Torah is teaching us an added point with regard to Edim Zomemim: even in a case where we would have thought that the punishment of "Ka'asher Zamam" would not apply, it does apply, such as in the case of testimony against an Eved. This is what the Gemara means by adding the words, "'u'Vi'arta ha'Ra mi'Kirbecha' *mi'Kol Makom*." The Gemara is learning from this verse that the punishment of "Ka'asher Zamam" applies in more cases than we would have thought.

Accordingly, the verse our Gemara quotes is not referring specifically to putting a person to death, but it is a general verse regarding all of the Halachos of "Ka'asher Zamam," even with regard to Malkus and money. (M. Kornfeld)

(b) In the beginning of Makos, TOSFOS asks why testimony is accepted from witnesses to make a Kohen a Ben Gerushah or Ben Chalutzah, if we do not punish the witnesses in the same way if they are found to be Edim Zomemim; why is it not "Edus she'Iy Atah Yachol l'Hazimah?" One of his answers is that any form of testimony that is not discussed in the Parshah which describes "Ka'asher Zamam" does not have to be punishable with "Ka'asher Zamam," the same punishment that the witnesses tried to inflict on the defendant, in order to be valid testimony. Since the Torah specifically teaches that testimony stating that a Kohen is a Ben Gerushah is not included in the discussion of "Ka'asher Zamam," it does not have to be testimony that is "Yachol l'Hazimah."

The same answer can be applied to our Sugya, since the verse of "Ka'asher Zamam" is discussing someone who is testifying against "Achiv," a brother, and not against an Eved.

However, this answer is problematic. If this is correct, then why does the Gemara need to answer that the witnesses are killed because of "u'Vi'arta ha'Ra?" The Gemara could have said that the witnesses are *not* killed, and nevertheless the Eved about whom they testified is killed if they are not found to be Zomemim, because their testimony does not have to be testimony that is "Yachol l'Hazimah." The answer is that the Gemara indeed could have said that the witnesses who testify against an Eved are not killed and, nevertheless, their testimony does not have to be "Yachol l'Hazimah." However, the Gemara maintains that the truth is that they *are* killed because of "u'Vi'arta ha'Ra." With regard to Malkus and Mamon, their testimony will not have to be "Yachol l'Hazimah," and the Eved will be punished even though the witnesses will not be punished if found to be Zomemim, as Tosfos in Makos says.

(c) The other answer of Tosfos in Makos might provide an even better answer to our Sugya. Tosfos explains that since the witnesses who testify about a Ben Gerushah receive Malkus if they are proven to be Zomemim, their testimony is considered "Yachol l'Hazimah." Only testimony provided to *kill* a person must be punishable with the exact same punishment (killing the witnesses), since the verse says "Nefesh b'Nefesh." In contrast, testimony to give a person Malkus does not have to be punishable with "Ka'asher Zamam," as long as some other punishment is provided.

When witnesses testify against an Eved, although they will not receive Malkus for "Ka'asher Zamam," they *will* receive Malkus for "Lo Se'aneh v'Re'acha Ed Shaker" (Shemos 20:13) -- giving false testimony. Although the Eved is not "Achiv," he *is* "Re'acha." Since the witnesses will be punished with Malkus for "Lo Se'aneh," their testimony will be accepted to give Malkus to the Eved.

What about testimony to obligate the Eved to pay money, such as in the case in our Mishnah? Tosfos' answer will not apply, since, with regard to money, the verse says "Yad b'Yad," just like it says with regard to death ("Nefesh b'Nefesh"), teaching that such testimony must be "Yachol l'Hazimah."

We may answer this question in a number of ways.

1. The Noda b'Yehudah (loc. cit.) writes that the Torah does not require that testimony regarding a monetary obligation be "Yachol l'Hazimah" (this is in contrast to the view of many Acharonim; see REBBI AKIVA EIGER in Gilyon ha'Shas 88a).

2. The CHIDUSHEI HA'RIM suggests that the witnesses can testify *after* the Eved becomes free that they saw the Eved damage a person while he was a slave, and the testimony *will* be "Yachol l'Hazimah."

3. The Chidushei ha'Rim adds that since the Eved has no money until he is freed, the testimony against him -- even if it is said while he is an Eved -- is only trying to damage a *free* man -- that is, the Eved after he will be freed. Hence, it indeed can be called testimony about an "Achiv" and it is "Yachol l'Hazimah."

QUESTIONS: The Gemara asks how do we know that an Eved cannot serve as a valid witness, according to the Rabanan who argue with Rebbi Yehudah. The Gemara first suggests that the source is a Kal v'Chomer from a woman, who is invalid for Edus, but it refutes the Kal v'Chomer. The Gemara then attempts to derive it from a Katan, who is invalid for Edus. In its conclusion, the Gemara derives it from a "Tzad ha'Shaveh" from a Gazlan, and from either a Katan or woman.

RASHI (DH Pesulah) explains that a woman is Pesulah l'Edus because the verse says, "v'Amdu Shnei ha'Anashim" -- "And the two *men* shall stand" (Devarim 19:17). Rashi continues and says that this verse also excludes a Katan from Edus. Rashi then adds that, in addition , a Katan's testimony cannot be accepted because it is "Edus she'Iy Atah Yachol l'Hazimah," since Beis Din cannot give a punishment to a Katan.

Rashi's words are difficult to understand for a number of reasons.

(a) Rashi's source for excluding Ketanim from Edus because of the verse "v'Amdu Shnei ha'Anashim" is the Gemara in Bava Basra (155b), as the Acharonim here point out. Why, though, does the Gemara there need to derive from a verse that a Katan is excluded from Edus, if the Edus of a Katan is invalid anyway because it is "Edus she'Iy Atah Yachol l'Hazimah?" This reason alone should disqualify a Katan from giving testimony, like Rashi says! (REBBI AKIVA EIGER, Teshuvos #176)

(b) Why does Rashi need to add a second reason to disqualify a Katan from giving testimony, in addition to the Gemara's reason? Why does the Gemara's reason not suffice? (AYELES AHAVIM, Kesuvos, Kuntrus Acharon #108)

(c) REBBI AKIVA EIGER (in Gilyon ha'Shas) asks that the second reason that Rashi gives, that a Katan's testimony is not valid because it is "Edus she'Iy Atah l'Hazimah," does not seem to be consistent with our Sugya. Our Gemara is trying to derive the source that teaches that an Eved is disqualified from giving testimony, and it attempts to derive this by learning the Halachos of an Eved through a Kal v'Chomer or Binyan Av from a Katan, who is disqualified from Edus. If the reason why a Katan is disqualified is because it is impossible to make him into an Ed Zomem, then it would be impossible to derive that an Eved cannot give testimony from the fact that a Katan cannot give testimony, because an Eved *can* be made into an Ed Zomem! In fact, according to Rashi's second reason, there is no specific law that disqualifies a Katan from Edus altogether. Rather, he is disqualified as a corollary of the general law that Edus must be "Yachol l'Hazimah." How, then, can the Gemara here make a statement that the Torah disqualifies a Katan, and thus it certainly would also disqualify an Eved?

ANSWERS:

(a) The Acharonim suggest a number of reasons why the reason of "Edus she'Iy Atah Yachol l'Hazimah" does not suffice to disqualify a Katan from Edus.

1. REBBI AKIVA EIGER (Teshuvos, loc. cit.) explains that if this was the only reason to disqualify a Katan, then a Katan's testimony *would* be accepted in certain cases. He would be accepted to testify about a Kohen who is a Ben Gerushah or Ben Chalutzah, according to the second answer of TOSFOS in Makos (2a), in which Tosfos asserts that such testimony does not have to be "Yachol l'Hazimah" (see previous Insight).

Similarly, Rebbi Akiva Eiger points out that testimony about Kidush ha'Chodesh does not have to be "Yachol l'Hazimah," since it is not testimony against any person. Also, testimony to protect a person from being killed (by contradicting witnesses who say that a person is Chayav Misah) obviously does not have to be "Yachol l'Hazimah" since such testimony is not attempting to cause harm to anyone. In order to invalidate a Katan even from these forms of testimony, the Gemara in Bava Basra derives that a Katan is an invalid witness from the verse of "v'Amdu Shnei ha'Anashim."

2. RAV SHLOMO EIGER (in Teshuvos Rebbi Akiva Eiger, loc. cit.) and the GEVURAS ARI (Makos 2a) answer that had the Katan been disqualified only because his Edus is not "Yachol l'Hazimah," then his testimony would be accepted when he testifies after he becomes an adult and is punishable. Now that the Torah disqualifies him because of the verse, "v'Amdu Shnei ha'Anashim," testimony that a Katan saw is invalid, even if it is repeated in front of court after the Katan becomes an adult.

The KOVETZ SHI'URIM (Bava Basra #566, #583) asks another question on the Gemara in Bava Basra. Why does the Gemara not say that a Katan is disqualified from Edus because a Katan's word is not reliable? Rav Elchanan proves that the testimony of a Katan is not reliable from the fact that the Mishnah in Kesuvos (28a) disqualifies the testimony of a Katan even with regard to an Isur, and even if the Katan testifies about the Isur after he becomes an adult (unless he is testifying about an Isur d'Rabanan). If the only reason a Katan is disqualified is because of the verse of "v'Amdu Shnei ha'Anashim," or because his Edus is "Edus she'Iy Atah Yachol l'Hazimah," then his testimony should be accepted with regard to Isurim, which do not require all of the Halachos of Edus (such as two witnesses); even the testimony of a woman is accepted with regard to Isurim (see TOSFOS in Kesuvos 28a, DH Elu).

The answer to this question might be that if the Katan has a mature mind (for example, if he has almost reached the age of Bar Mitzvah), then his testimony is just as reliable as it is when he testifies on the day after his Bar Mitzvah. When the Mishnah in Kesuvos teaches that a Katan is not trusted to testify when he is an adult about what he saw when he was a Katan, it is referring to what he saw when he was *very* young, when his testimony was certainly not reliable. Perhaps he may not even testify about what he saw shortly before he became thirteen, *mid'Rabanan*, but mid'Oraisa his testimony should indeed be accepted with regard to Isurim. (M. Kornfeld)

(b) The reason Rashi finds it necessary to introduce a new reason to disqualify a Katan from Edus is because there is no other way to explain our Gemara. The Gemara, when it attempts to derive that an Eved is disqualified from Edus through a "Tzad ha'Shaveh" between Katan and Ishah, the Gemara rejects the "Tzad ha'Shaveh" saying that we cannot learn that an Eved is invalid from Katan and Ishah, because they have a common element which is the cause for their disqualification -- neither of them is an Ish, while an Eved *is* an Ish! As the TORAS CHAIM points out, this is an extremely odd "Tzad ha'Shaveh." If we can use such a form of "Tzad ha'Shaveh," we can propose a similar "Tzad ha'Shaveh" to reject *any* attempted "Mah ha'Tzad" by saying that we cannot derive C from A and B, because the common element of A and B is that they are not C! This contradicts the most basic premise of the Derashah of "Tzad ha'Shaveh," which is that the presence of a common element can be the cause of a certain Halachah, but it cannot cause a common *lack* of a Halachah!

The only way to understand the Gemara is the way that Rashi (DH she'Ein Ish) explains it, which is that both an Ishah and a Katan are excluded by the same verse, "v'Amdu Shnei ha'Anashim," and therefore their exclusion is considered to be a *single* Halachah and we cannot derive from them that an Eved is invalid for Edus, since we cannot be excluded from the verse that excludes non-"Anashim." If this is true, however, then what does the Gemara mean when it initially suggests that we should derive that an Eved is invalid for Edus from a "Tzad ha'Shaveh" between Ishah and Katan? Ishah and Katan are not disqualified by two different verses, such that we could make a "Tzad ha'Shaveh," but they are both disqualified from a single verse that teaches that a witness must be an Ish, and thus an Eved -- who is an Ish -- obviously cannot be disqualified from Edus by this verse!

It is for this reason that Rashi finds it necessary to propose that our Gemara initially thinks that a Katan is disqualified from Edus not just because he is excluded through the verse requiring "Anashim," but because of another reason. The reason that Rashi proposes is that Edus of a Katan is not "Yachol l'Hazimah." (M. Kornfeld)

(c) However, Rashi does not seem to be explaining the Gemara in its entirety. As the Gilyon ha'Shas asks, the invalidating factor of a Katan's testimony -- that it is "Edus she'Iy Atah Yachol l'Hazimah" -- is not an invalidating factor in the *Katan* himself; that is, it does not disqualify the Katan as a person. Consequently, we cannot derive from the Halachah that a Katan is invalid for Edus that an Eved is invalid for Edus! The answer to this question might be as follows.

The Gemara initially thinks that, logically, we would not derive from the verse "v'Amdu Shnei ha'Anashim" that both an Ishah and a Katan are disqualified from giving testimony. The reason for this is that the two Derashos are not equal (see Bava Kama 3a). Rather, it would be more logical to disqualify women because of the verse, "Kol Kevudah Bas Melech Penimah," (Tehilim 45:14), as the Gemara says in Shevuos (30a). A Katan, on the other hand, when his mind is fully developed but he does not yet have two Se'aros or has not yet reached the age of adulthood, should logically be accepted as a witness just like an adult (or like a child who does have two Se'aros, as the Gemara implies in Bava Basra (155b)).

Although a Katan is not obligated to observe the Mitzvos, nor is he punished for transgressing them, testimony is merely a question of trustworthiness, and a Katan who is almost an adult is just as trustworthy as when he becomes an adult.

This is why the Gemara thought that a Katan would not be disqualified from Edus had his testimony not been "Edus she'Iy Atah Yachol l'Hazimah." However, since the testimony of a Katan is usually not "Yachol l'Hazimah" (accept in the cases mentioned above, such as testimony for Kidush ha'Chodesh, or testimony that he gives when he becomes an adult), therefore -- in order to extend the Pesul of a Katan and make it a general Pesul (even in the cases mentioned above), it will suffice to derive from the verse of "v'Amdu Shnei ha'Anashim" that he is disqualified from giving testimony, even though we already derived that a woman is disqualified from testimony from that verse. That is to say, the fact that a Katan's testimony is rejected for other reasons most of the time, makes him equal to an Ishah, and thus the two exclusions (that of Katan and that of Ishah) are equal.

This answers the question of the Gilyon ha'Shas. Although Rashi writes that a Katan is "Edus she'Iy Atah Yachol l'Hazimah," ultimately this is not what disqualifies a Katan from giving testimony. It is only because the verse says "ha'Anashim" that we disqualify the *person* himself, and not just because the Katan's Edus is not "Yachol l'Hazimah."

The Gemara thought that it could make a "Mah ha'Tzad" between Ishah and Katan, since the main reason that a Katan is disqualified is not because he is not an Ish, but because most of his testimony is not "Yachol l'Hazimah." The Gemara ultimately concludes that this is not so, and the main reason a Katan is disqualified is because he is not an Ish, just like a woman, and indeed a Katan and an Ishah are considered equal, aside from the consideration of "Edus she'Iy Atah Yachol l'Hazimah." (M. Kornfeld)

QUESTION: Mar brei d'Ravina derives that the testimony of an Eved is not accepted, based on the verse, "Lo Yumsu Avos Al Banim" (Devarim 24:16). The straightforward meaning of this verse is, "Fathers shall not be put to death because of [the testimony of] sons." Mar brei d'Ravina interprets the verse, "Lo Yumsu *Al Pi* Avos *she'Ein la'Hem Chayis* Banim" -- "he (the defendant) shall not be put to death based on the testimony of a person who, as a father, has no Halachic familial relationship with his children (i.e. a slave).

How can we possibly read such an interpretation into the verse? How can the verse be read such that "Avos" refers to the *witness* (as opposed to the defendant)? If it refers to the witness, then where does it say that they do *not* have a familial relationship with their sons? It says "Avos Al Banim," implying that they *are* considered to have a familial relationship with their sons! On the contrary, the verse should be read that we cannot put someone to death based on the testimony of fathers who *have* a familial relationship with their children!

ANSWER: The RA'AVAD cited by the Shitah Mekubetzes explains the verse as follows. "Lo Yumsu Avos" -- defendants should not be killed, "Al Banim," because of something that has to do with children. The verse, then, means that a familial relationship with children is a factor to take into account when considering whether to accept testimony.

However, this does not seem to be consistent with the words in our Gemara. The Gemara paraphrases the verse as saying, "Lo Yumsu Al Pi Avos she'Ein la'Hem Chayis Banim" -- one should not die based on [the testimony of] fathers who have no familial relationship with their sons. Since the "Avos" in the verse are the defendants and not the witnesses, how are we to explain the words "*Al Pi* Avos" ("*based on [the testimony]* of fathers") in the Gemara?

The Shitah Mekubetzes cites manuscripts that state, "Lo Yumsu *Avos Al Pi* she'Ein la'Hem Chayis Banim," reversing the order of the words "Al Pi" and "Avos," and thus the "Avos" are indeed the defendants, and the verse is saying that "fathers shall not be put to death based on [the testimony of] those who have no familiar relationship with sons." (The Hamburg manuscript, cited by the Dikdukei Soferim has a similar Girsa.)

According to our texts, the words "Al Pi" should be read like "Al Pi Hem," and they should be read with a pause after them. The Gemara thus means, "Lo Yumsu Al Pi" -- [they] shall not be put to death based on verbal testimony -- "Avos," the fathers (meaning the defendant), "Al Banim," becaus e of something that has to do with familial relationship (as the Ra'avad explains).

88b